The New Provisional Visa Waiver To Support Family Unity Finally Arrives

Posted on 01/04/13

Nearly one year ago, way before the implementation of the Deferred Action For Childhood Arrivals was announced in June of last year, the Department of Homeland Security announced its intention to drastically alter how waivers were processed for immediate relatives of U.S. Citizens. Now, after a long period of comments from the public, including immigration attorneys, politicians and immigration activists, to name a few, the final rule is set to go into effect on March 4, 2013. So, what exactly will happen on March 4, 2013 and how will this affect visa applicants here in Connecticut and New York?

There will be a new process for applicants seeking to adjust their status through a petition filed by an immediate relative. Basically, to use the example of a wife petitioning for her husband, the process begins the same way through the filing of a Petition for Alien Relative (done on USCIS Form I-130). However, under current law, a person who is the beneficiary of a visa petition cannot complete the process of applying for permanent residency here in the United States if they have sustained periods of “unlawful presence” or if they have entered the U.S. without inspection and/or lived in the U.S. after a visa has expired. Individuals who have more than six months of unlawful presence are required to file for a waiver before permanent residency can be obtained. However, until the new rule change for 2013, this waiver was only available to applicants that left the United States to return to their native country to apply for this visa. This resulted in unpredictable and lengthy stays away from families, not to mention the risk that the visa waiver would even be granted. Now, because of the new rule change, this waiver can be decided before the applicant leaves the United States. Under the rule change, immediate relatives of U.S. Citizens will still have to leave the United States, but only for “consular processing” to obtain the final visa for permanent residency in the United States. What was once expected years of time spent waiting outside of the United States for the decisions on these waivers can now be reduced to days or weeks of required departure to the applicant’s native country. Not everyone will automatically qualify for the provisional waiver. First, one must be an immediate relative, or a spouse, child or parent of a U.S. Citizen. The applicant must demonstrate that their immediate relative will experience “extreme hardship” if the unlawful presence waiver is denied. The provisional waiver is only available for unlawful presence problems, and not for other issues that would lead to a person being inadmissible to the U.S.

For more information, check back here at frequently. We think this is a sign of more changes to come in U.S. Immigration Law in 2013. What do you think?